What HR can learn from the Stefanovic saga

The departure of Karl Stefanovic from Channel 9 has prompted questions around the ethics of high-profile journalism and corresponding legal obligations.

Editor's note: This story has been updated to include additional information and commentary.

As of today (26 June) the long-time host of the Today show on Channel 9 will leave the network following intense criticism of a recent The Karl Stefanovic Show podcast episode featuring notorious UK-based far-right activist Tommy Robinson.

Promoting the episode as “a wild chat you can’t miss” on social media on 22 June, Stefanovic received waves of criticism for platforming Robinson – who has multiple convictions and is known for anti-immigration and nationalist sentiment – while some supporters decry the likely departure as a breach of free speech, including One Nation leader Pauline Hanson.

The incident occurred just six months before Stefanovic’s contract with the broadcaster was set to expire. While the podcast is not directly affiliated with the Nine Network, The Australian reported that top executives allegedly spent Tuesday (24 June) in crisis meetings following the episode’s release, with many still wondering who pulled the plug first.

HR Leader reached out to employment lawyers to examine the legal ramifications of the departure, what HR can learn from the incident, and what might have happened behind the scenes.

According to workplace relations lawyer at Swaab, Michael Byrnes, the central issue is whether Stefanovic’s conduct breached “his obligations as an employee of Nine Network, specifically as one of the hosts of the Today programme”.

“There are established principles that out-of-hours conduct can result in termination of employment where, inter alia, it damages the interests of the employer or is incompatible with the employee’s duties,” Byrnes said.

In the case of a dismissal, Byrnes said that Nine could argue the interview was damaging to the broadcaster’s interests as a basis for disciplinary action.

In fact, according to a partner at Kingston Reid, Michael Mead, it is likely Channel 9 “would have had explicit obligations … in relation to him [Stefanovic] not engaging in conduct which was likely to damage or injure its brand, reputation and commercial relationships. These types of clauses are very common and give an employer the ability to identify private conduct or conduct which occurs outside of the direct employment relationship as a basis for terminating employment”.

SLF Lawyers workplace relations lawyer Elizabeth Aitken noted the special circumstances of Stefanovic’s public reputation, highlighting: “Any conduct from Karl that attracts negative attention or rebuke would have potential financial ramifications and brand damage for Nine.”

Byrnes said: “The fact it occurred on the podcast does not mean Nine has no ability to take action, but it does need to establish a nexus between the conduct on the podcast (which would be classified as out-of-hours conduct) and damage, or likely damage, its interests (such as reputation, audience or revenue).”

Jewell Hancock Employment Lawyers principal Andrew Jewell agreed that the interview’s separation from Stefanovic’s employment with Nine is not a significant legal consideration, “as out-of-employment conduct can be a basis for dismissal, especially for employees in public roles”.

Similarly, he identified that questions could be asked on “whether there could be an allegation that the reason for the dismissal is unlawful from the perspective of anti-discrimination legislation, including the general protections of the Fair Work Act 2009 (Cth), which prohibits dismissal for political opinion”.

In this way, it is especially crucial to consider any limitation and the true reason for dismissal to mitigate the risk of an allegation “that the dismissal is for an unlawful reason (such as political opinion)”.

From an HR perspective, Byrnes noted that, in more everyday cases, managers can consider a warning or counselling about the conduct in question, adding that there may be other reasons to preserve the relationship.

He said: “If it is decided there will be a termination of employment, consideration needs to be given as to whether it will be by provision of notice or to rely upon the serious misconduct clause and terminate summarily.”

“Commonly, there will also be a ‘without prejudice’ discussion to seek to achieve a separation on agreed terms (including communications, messaging and non-disparagement), recorded in a settlement deed or agreement.”

Mead also noted that HR “should be considered in making assessments in relation to these matters because not all private conduct will meet the necessary threshold, and it’s important therefore to get the right advice before moving forward to terminate the employment relationship”.

Aitken said the case is a reminder of the importance of robust behavioural and termination clauses in employer and employee contracts, consistency in the application of behavioural standards, and the increasingly interlinked nature of public and personal reputations.

She said: “The recent case of Kyle Sandilands is a good example of a rainmaker being allowed unbridled licence at an extortionate cost to ARN. Set behavioural standards, and apply a consistent approach in enforcing them, including for outside-hours conduct that has a substantial connection with the work.”

HR Leader received the following comment from Nine Entertainment today (26 June): "Nine Entertainment and Karl Stefanovic have agreed that it is no longer possible for him to continue hosting Today at the same time as his independent podcast. While Karl and Nine had previously agreed he would leave Today at the end of this year, they have subsequently decided he will leave the Network immediately."

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